CRIMINAL APPEAL 273 OF 20

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MKUYE. J.A.. KITUSI, J.A., And ISSA. J.A/1 CRIMINAL APPEAL NO. 273 OF 2021 SHIGELA MASAI @ MHOJA LUKU BANDA.................................APPELLANT VERSUS REPUBLIC........................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Geita) (Rumanyika, 3.1 dated the 25thday of March, 2021 in Criminal Session No. 239 of 2016 JUDGMENT OFTHE COURT 5th & 13th August, 2024 KITUSI, J.A.: The appellant is alleged to have caused the death of one Juma Malinganya, his neighbour and friend, by administering poison in a drink which the deceased unknowingly took. It was alleged that he thereafter cut off the tongue from his dead friend's body and removed his hair before leaving with those items to deliver to a traditional healer who had ordered for them as ingredients of medicine that would make the appellant rich. He was charged with murder contrary to sections 196 and 197 of the Penal Code. Two witnesses for the prosecution were sufficient to prove the 1 appellant's guilt before the High Court as his evidence in denial did not displace the said prosecution's case. The first witness (PW1) A/Insp. Justo, recorded the appellant's cautioned statement, while the second witness (PW2) Hamad Hussein a Ward Executive Officer, who was at the material time a Justice of the Peace, recorded the appellant's extra judicial statement. These two statements were tendered by PW1 and PW2 respectively as Exhibit P3 and Exhibit P4 and it was alleged by the prosecution that in those statements the appellant confessed to the murder of the deceased. Although the appellant repudiated these statements alleging torture, a trial within a trial cleared them for admission and they formed the main basis of the conviction. In defence, the appellant reiterated his complaint of having been severely tortured in the hands of the police to the extent that, he stated, they forced him to accept that his name is Shigela Masai @ Mhoja Lukubanija while his true name is Shukran Nkara. He denied making any statements to PW1 or PW2. As intimated earlier, the trial court accepted the versions of PW1 and PW2 as true regarding Exhibit P3 and P4. It placed no weight on the defence, convicted the appellant and sentenced him to death. 2 The appellant is dissatisfied with the conviction and sentence so he has lodged this appeal raising 8 grounds in the original memorandum of appeal and 5 ground in the supplementary memorandum. Four of the grounds in the original memorandum of appeal seek to challenge the conviction that was based on the confessions. These are grounds 3, 6, 8 and 9. Similarly, grounds 1 and 2 in the supplementary memorandum of appeal question the legality of the extra judicial statement. Therefore there are six grounds of appeal challenging the reliance on the alleged confessional statements. It is therefore, of the essence to interrogate the legality of both the alleged confessions. Ground 1 in the original memorandum of appeal and ground 3 in the supplementary memorandum of appeal raise issue with the competence of a prosecution witness who did not feature in the committal proceedings. This is none other than PW1 who, as shown earlier, tendered the cautioned statement. This makes the legality of the cautioned statement more prone to attack. Hearing of this appeal proceeded in the presence of Mr. Lenin Meinrad Njau, learned counsel representing the appellant who was also present in person, and Mr. Castuce Clemence Ndamugoba, learned Senior State Attorney, for the respondent Republic. Given the main theme of the complaints in the memorandum of appeal, it was quite natural that the counsel would mainly address admissibility and legality of the alleged confessional statements. Beginning with the cautioned statement, Mr. Njau submitted that the trial court erred in relying on it without there being corroboration and that the extra judicial statement would not provide that corroboration as the same also needs corroboration. He cited the case of Mashimba Dotto @ Lukubanija v. Republic, Criminal Appeal No. 317 of 2013- [2014] TZCA 271 (22 October 2014,) TANZLII. The learned counsel also attacked PW1 as incompetent to testify because his statement was not read over during the committal proceedings nor was his name included in the list of would-be prosecution witnesses. He concluded by submitting that the effect of the violation of that requirement would be to expunge the evidence of PW1 along with the caution statement. The above submissions were supported by Mr. Ndamugoba as the learned Senior State Attorney did not oppose the appeal. He submitted that featuring a witness not earlier listed during the committal proceedings offended section 246 (2) of the Criminal Procedure At (CPA). Since the prosecution did not invoke section 289 (1) of the CPA to apply for leave or give notice of an intdntion to call an additional witness, the violation 4 was fatal as it denied the appellant a fair hearing. He joined hands in praying that the evidence of PW1 be expunged. The learned Senior State Attorney went further. He submitted that even PW2 was incompetent to testify because his name does not feature in the list of prosecution witnesses whose statements were read out during committal proceedings. Instead, his name appears on the next page where there is another list of witnesses without an indication that their statements were read out. He prayed that the evidence of PW2 be expunged also. The learned Senior State Attorney pointed out further that even the documentary exhibits that were tendered during the trial, ought to have been read out during the committal proceedings, but that was not done. The law on this aspect is settled but we will not mind repeating ourselves, by citing two previous decisions. In Sitta James v. Republic, (Criminal Appeal No. 469 of 2020) [2024] TZCA 25 (12 February 2024) giving the rationale for this requirement, we stated: "The purpose of this requirement, basically, is to provide a fair trial by giving the accused an opportunity o f understanding the nature o f the I prosecution 'evidence and prepare a sound defence. This means that a witness whose statement or substance o fevidence is not read out i during the committal proceedings as per section 246 (2) of the CPA wiii not be qualified to be called by the prosecution to adduce evidence unless the prosecution issues a reasonable notice to callsuch a witness in terms o f section 289 (1) of the CPA f/ 9 99 In Daniel Thomas @ Yusuph @ Ngeni v. Republic, (Criminal Appeal No. 120 of 2022) [2024] TZCA 103 (23 February 2024), we stated in relation to omission to read exhibits during committal proceedings, that:- "... it is dear that, whereas the said exhibits were listed as part of the evidence that the prosecution would rely on, the Magistrate who committed the appellants did not read or cause them to be read to the appellants. This means that the appellants were kept oblivious of what die documents contained, and, certainly, what to expect from their accusers". With respect we agree with both the Senior State Attorney and Mr. Njau that the testimonies of PW1 and PW2 as well as the exhibits tendered by them are liable to be expunged. Having so expunged, the prosecution 6 case remains but a useless husk which cannot prove anything against the I I I appellant. I We would have stopped here because we have essentially disposed of the appeal, but we need to caution and offer guidance on two matters. The first is that in resolving the appellant's complaint that he was tortured into admitting even a strange name as his, the learned trial judge wondered why it did not occur to the appellant to prove the police wrong by presenting his parents, guardian, birth certificate, School leaving certificate, baptism certificate etc. With respect this approach was utterly wrong because it shifted the burden of proof on to the suspect. In our view, if the learned Judge had exercised little patience before dismissing the appellant's contention, he would have noted that according to the very cautioned statement, Mhoja Lukubanija which is cited as one of the appellant's names, is actually the name of the medicine man who had ordered the appellant to deliver human organs to him. The second is the learned Judge's reference to what he termed as six principles that would help judges resolve the issue of voluntariness in recording confessional statements. In doing so, the learned judge was, according to him, informed of the complex nature of human psychology. Both Mr. Ndamugoba and Mr. Njau were perturbed and could not fathom the essence of that knowledge. Mr. Ndamugoba submitted that the principles were extraneous matters that influenced the decision. With respect we agree with the learned counsel and we must emphasize that determination of voluntariness of confessions must continue to be determined by holding inquiries, in subordinate courts, or trials within trials at the High Court. In our firm view, whether a suspect was tortured into making a confession is a question of evidence involving no philosophy. We must emphasize that the provisions of sections 50 to 58 of the CPA were introduced after the inclusion of the bill of rights in our Constitution, specifically to subject the processes of investigations to some international standards, so they must not be taken lightly. See the case of Juma Nyamakinana & Another v. Republic, Criminal Appeal No.133 of 2011, citing Mussa Mustapha Kusa & Another v. Republic Criminal Appeal No 51 of 2010:- "We should quickly point out that these elaborate provisions were not superfluously added to the Act. They are for a specific purpose. Having been enacted after the inclusion of the basic right of equality before the law in our constitution, they were purposely added as procedural guarantees to this right". All said, we are satisfied that the prosecution did not prove its case beyond reasonable doubt. We find merit in this appeal and allow it. The appellant should be set free immediately if not held for some other lawful cause. DATED at MWANZA this 12th day of August, 2024. R. K. MKUYE JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 13th day of August, 2024 in the presence of Appellant in person and Ms. Mwanahawa Changale, learned Senior State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. A. S. CHUGULU DEPUTY REGISTRAR COURT OF APPEAL 9